United States District Court, D. New Jersey
Anthony John Leonard, Esq. Paul H. Schultz, Esq. LEONARD
SCIOLLA HUTCHINSON LEONARD & TINARI LLP Attorneys for
B. Taylor, Assistant U.S. Attorney OFFICE OF THE U.S.
ATTORNEY, DISTRICT OF NEW JERSEY Attorney for Defendant
B. SIMANDLE U.S. DISTRICT JUDGE
a Federal Tort Claims Act case arising out of a slip and fall
suffered by Plaintiff Kimberly Braboy in the Exchange store
at the Joint Base Maguire-Dix-Lakehurst on July 4, 2014.
Defendant United States of America moves for summary judgment
[Docket Item 11] on two theories: 1) there is no genuine
dispute of material fact that the sole “proximate
cause” of Plaintiff's injury was her own
inattention (rather than any negligence attributable to
Defendant), as she was looking at her cellular telephone
while walking down the store aisle whereupon she slipped on a
clothes hanger; and/or 2) Plaintiff's negligence exceeds
Defendant's negligence and she is barred from recovering
damages. [Docket Item 11-2 at 6.]
reasons set forth below, the Court will deny Defendant's
Motion for Summary Judgment.
filed this action on May 31, 2016, against Defendants Joint
Base McGuire-Dix-Lakehurst Exchange and Army & Air Force
Exchange Service, alleging one count of negligence. [Docket
Item 1.] Subsequently, the parties agreed to substitute
Defendant United States of America as the sole defendant in
this action. [Docket Item 7.] Defendant then filed the
instant motion for summary judgment [Docket Item 11];
Plaintiff filed a Response in Opposition [Docket Item 13];
and Defendant filed a Reply [Docket Item 15].
4, 2014, Plaintiff was at the Exchange store located on the
Joint Base McGuire-Dix-Lakehurst (hereinafter
“Exchange” or “the Exchange”). The
Exchange is similar to a department store or a Target, in
that it stocks several different types of goods, ranging from
hardware to clothing.
date, Plaintiff was walking down what both parties agree is
either the (or “a”) “main aisle” of
the exchange [Docket Items 11-1 ¶ 9; 13 at 20 ¶ 2],
whereupon she slipped on a clothing hanger on the floor of
the aisle [Docket Items 11-1 ¶ 2; 13 at 21 ¶ 11]
and fell to the ground. The parties agree that the hanger was
made of clear plastic with a metal hook (and Plaintiff states
that all hangers for clothing at the Exchange were identical
and of this same type [Docket Item 13 at 21 ¶ 12]);
however, the actual hanger was apparently not preserved.
Id. at 22 ¶ 13.
surveillance footage, covering the time period beginning
approximately 20 seconds before Plaintiff fell and continuing
for some twenty (20) minutes thereafter (until Plaintiff was
removed by paramedics) [id. at 22 ¶ 14], was
preserved. Although some witnesses, when viewing the video
footage, are able to identify the hanger, others are not.
[Docket Items 11-1 ¶¶ 15-17; 13 at 22-23 ¶
states that the video shows “Plaintiff hold[ing] her
cell phone in front of her face as she walks down the
aisle” and then “stepping on a hanger, slipping,
and falling to the ground.” [Docket Item 11-1
¶¶ 16-17.] Plaintiff responds that “[t]here
is no dispute that Ms. Braboy was using her cell phone at the
time of her fall. Ms. Braboy's cell phone was small and
she was able to see around it to observe the ground in front
of her and her surroundings in general” and again
disputes that the video shows the hanger. [Docket Item 13 at
23 ¶¶ 16-17.] Plaintiff also notes, by way of
denial of Defendant's submitted assertion that
“Plaintiff did not see the hanger she stepped on
because she was looking at her cell phone” [Docket Item
11-1 ¶ 19], that she has stated “that if the
hanger was not clear in color she would have been able to see
it with her peripheral vision and would have avoided
it.” [Docket Item 13 at 23 ¶ 19, citing Braboy
Declaration, Docket Item 13 at 29-30, ¶ 10.]
Defendant points to the following exchanges in
Q. Did you see the hanger before you stepped on it?
Q. Were you looking ahead of you while you were walking?
A. I was looking at my cell phone.
Q. . . . When you were walking, was it your sense that you
were paying attention to what you were writing to your mom on
Q. And at other times where you walked and texted, do you
have a general sense of the lay of the land around you while
you are walking?
A. I don't know.
Q. Do like you would have a sense of if a rack of clothes is
right in front of you, you would kind of walk around it, even
if you are still texting?
Q. But you don't have a specific sense of what's